Credit Agreement [Amendment No. 1] - Flatirons Funding LP and The Dai-Ichi kangyo Bank Ltd.
EXECUTION COPY
AMENDMENT NO. 1 TO AMENDED AND RESTATED CREDIT AGREEMENT
AMENDMENT NO. 1 to the Amended and Restated Credit Agreement (the
"Amendment"), dated as of February 21, 2001, and effective as of March 7, 2001,
by and among FLATIRONS FUNDING LIMITED PARTNERSHIP, a Delaware limited
partnership (the "Company"), THE DAI-ICHI KANGYO BANK, LIMITED, NEW YORK BRANCH,
as issuer of the letter of credit referred to therein (in such capacity, the
"L/C Bank") and as administrative agent for such banks under this Amendment (in
such capacity, the "Agent" and the banks listed on the signature pages hereto
(the "Banks").
WHEREAS, the Company, the L/C Bank, the Agent and the Banks, have
heretofore entered into an Amended and Restated Credit Agreement dated as of
March 7, 1997 (the "Credit Agreement"); and
WHEREAS, the Company, and the Banks wish to amend the Credit Agreement
in certain respects as contained herein.
NOW THEREFORE, the Company and the Banks hereby agree as follows:
1. Definitions. Capitalized terms used herein and not defined herein
shall have the respective meanings given to such terms in the Credit
Agreement.
2. Amendments to Credit Agreement.
(a) The definition of "Applicable Margin" contained in Section
1.01 of the Credit Agreement is hereby amended to read in its entirety as
follows:
"Applicable Margin" shall mean during any Pricing
Period with respect to any LIBOR Advance or Overnight Fed Funds
Rate Advance, 87.5 basis points per annum.
(b) The definition of "Final Date" contained in Section 1.01 of
the Credit Agreement is hereby amended to read in its entirety as follows:
"Final Date" shall mean November 30, 2001, or, if
extended pursuant to Section 5.06 hereof, then the date as so
extended.
(c) The definition of "Total Commitment" contained in Section 1.01
of the Credit Agreement is hereby amended to read in its entirety as follows:
"Total Commitment" shall mean, at any time, an amount
equal to the aggregate amount of the Commitments of all the Banks
at such time. The Total Commitment is subject to reduction
pursuant to Sections 5.05(a) and 10.02 hereof and to increase
pursuant to Section 5.05(b) hereof. On the date hereof, the Total
Commitment is $118,000,000.
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(d) Section 5.01(c) of the Credit Agreement is hereby amended to
read in its entirety as follows:
(a) "Facility Fee" The Company shall pay to the Agent
for the account of the Banks a facility fee from the date of the
effectiveness of the Amendment to the Final Date on the daily
average amount of the Total Commitment (used or unused) at a rate
equal to 0.125% per annum, which fee shall be allocated among the
Banks pro rata according to the respective amounts of their
Commitments. Such fee shall be payable quarterly in arrears on the
last day of each March, June, September and December during the
term of this Agreement, commencing on March 31, 2001, and ending
on the Final Date.
3. Extension Fee. In consideration for each Bank's execution of this
Amendment, upon the effectiveness of this Amendment, the Company will pay each
Bank a one-time fee equal to 5 basis points (0.05%) of such Bank's Commitment.
4. Counterparts. This Amendment may be executed in several
counterparts, each of which when executed and delivered shall be deemed an
original and all of which counterparts, taken together, shall constitute but one
and the same Amendment.
5. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
6. Credit Agreement Remains in Effect. Except as provided herein, all
provisions, terms and conditions of the Credit Agreement shall remain in full
force and effect. As amended hereby, the Credit Agreement is ratified and
confirmed in all respects.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered by their duly authorized officers as of the day and year
first above written.
FLATIRONS FUNDING LIMITED PARTNERSHIP
By: Flatirons Capital, Inc.,
General Partner
By: _______________________________
Name:
Title:
THE DAI-ICHI KANGYO BANK, LIMITED,
NEW YORK BRANCH as L/C Bank and Agent
By: _______________________________
Name:
Title:
SIGNATURE PAGE TO AMENDMENT NO. 1 TO AMENDED AND
RESTATED CREDIT AGREEMENT
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COMMITMENT BANKS
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$18,085,223.37 THE BANK OF NOVA SCOTIA
By: _______________________________
Name:
Title:
Address: The Bank of Nova Scotia
580 California Street, Suite 2100
San Francisco, California 94104
Attention: Chris Johnson
Facsimile: (415) 397-0791
Telephone: (415) 986-1100
$29,601,374.57 KEY BANK OF WASHINGTON
By: _______________________________
Name:
Title:
Address: Key Bank National Association
3 Embarcadero Center, Suite 2900
San Francisco, California 94111
Attention: Julien Michaels
Facsimile: (415) 733-2480
Telephone: (415) 733-2483
SIGNATURE PAGE TO AMENDMENT NO. 1 TO AMENDED AND
RESTATED CREDIT AGREEMENT
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$18,085,223.37 DEUTSCHE BANK AG, NEW YORK BRANCH
By: _______________________________
Name:
Title:
Address: Deutsche Bank
31 West 52nd Street
New York, New York 10019
Attention: David Dickenson
Facsimile: (212) 469-8212
Telephone: (212) 469-8208
$10,542,955.33 WELLS FARGO BANK PENNINSULA RCBO
By: _______________________________
Name:
Title:
Address: Wells Fargo Bank Penninsula
RCBO
400 Hamilton Avenue
Palo Alto, California 94301
Attention: Eric Houser
Facsimile: (650) 328-0814
Telephone: (650) 855-7684
SIGNATURE PAGE TO AMENDMENT NO. 1 TO AMENDED AND
RESTATED CREDIT AGREEMENT
<PAGE>
$16,219,931.28 MELLON BANK
By: _______________________________
Name:
Title:
Address: Mellon Bank
400 South Hope Street, 5th Floor
Los Angeles, California 90071-2806
Attention: Ed Wiest
Facsimile: (213) 629-0492
Telephone: (213) 553-9503
$25,465,292.08 THE DAI-ICHI KANGYO BANK, LIMITED,
SAN FRANCISCO AGENCY
By: _______________________________
Name:
Title:
Address: The Dai-Ichi Kangyo Bank,
Limited, San
Francisco Agency
Suite 4000
San Francisco, CA 94111
Attention: Virgilio Madrid
Facsimile: (415) 788-7868
Telephone: (415) 393-1811
SIGNATURE PAGE TO AMENDMENT NO. 1 TO AMENDED AND
RESTATED CREDIT AGREEMENT